2016.003 Memento Mori

I’m writing this from 30,000 feet in the air, flying home to Houston from Atlanta where yesterday I argued a First Amendment case before the Georgia Supreme Court. Most lawyers never get to argue before their own State’s highest court, much less another state’s. Georgia was very hospitable to me. Brunswick criminal-defense lawyer Jason Clark1 and Savannah criminal-defense lawyer Cris Schneider, my local counsel on the case, put me up in a nice hotel, fed me good food, and—most importantly—made sure I didn’t have to worry about getting where I had to be when I had to.

In addition to Jason and Cris, I made other new friends in Georgia: Keith Lee, Andrew Fleischman, Jon Rapping, Scott Key, Esther Panitch, Alan Begner, and my opposing counsel Jay Sekulow (who I hope will be on the right side of the First Amendment the next time I work with him). I got to see my old Trial Lawyers College friend Nick Lotito. My old buddies Scott Greenfield and Brian Tannebaum flew in from New York and Miami to hang out and help me prepare for argument (I don’t need a moot court; I just need three or four smart lawyers to try to crush any pride I might have had in my argument over coffee).

The court didn’t have a lot of questions, and I don’t work great with cold panels. Give me a hostile panel over a cold one any day. A couple of times I stumbled because I hadn’t prepared to lecture the court for twenty minutes; finally I just shut up and enjoyed the silence for a moment. The one justice who had questions was David Nahmias, a former law clerk to Justice Scalia, former U.S. Attorney for the Northern District of Georgia, and by all accounts a brilliant guy—my kind of audience. He had the right questions both for me and for the State; I believe that Nahmias understood the argument better than the State, and at least as well as I understand it, which means that I didn’t obfuscate it too much in my brief.

Of course I have no idea what the court will do, but I know that I did a hell of a job (watch it here). Going home in triumph feels good.

Yet I remember the many times I have flown home from out-of-town cases feeling whipped, with my tail between my legs. And I remember that I could feel whipped rather than triumphant tomorrow, and that my next argument in the court of appeals (Thursday in the 14th) could be a total disaster. Also I remember that I am not my cases, so that I am the same guy when I am triumphant as when I am not.

Every victorious returning general needs that slave whispering in his ear: remember that you must die.


  1. For the Texas criminal-defense lawyers: Jason’s a Georgia version of Tony Vitz. 

3 Comments

  1. Aside from the fact that this shatters my image of what you actually look like, based on your avatar here, that was thoroughly enjoyable. As someone that doesn’t work in the law field, I still was able to clearly follow 99% of your arguments, and the only places I didn’t was in reference to landmark cases that non-lawyers wouldn’t know off the top of their heads. Which, to me, speaks volumes for your arguments – they just make sense. Conversely, I felt like the state jumped around too much, and went way too far down the child pornography path – hopefully the court will feel the same.

    I truly respect that you spend so much time fighting the constitutionality of laws, even when that means fighting a law that was intended to remove something from our society that we want removed. Your comment about this speech being “icky”, drove this home, and hopefully helps influence the court that it is irrelevant what the law intends to fix, if it does so in an unconstitutional matter. And not everyone would be able to take a stand in such situations as you do.

    MB Quote of the day: “…I spent most of my teenage years /trying/ to be sexually aroused…”

    Good luck!

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